Purkiss v Secretary, Department of Education

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Purkiss v Secretary, Department of Education [2022] NSWPIC 269
APPLICANT:	Leah Purkiss
RESPONDENT:	Secretary, Department of Education
MEMBER:	Rachel Homan
DATE OF DECISION:	3 June 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation in respect of alleged primary psychological injury due to bullying and harassment following return to work after a physical injury; liability for physical injury and a secondary psychological condition accepted; whether there is a separate primary psychological injury; whether there is separate incapacity resulting from a primary psychological injury; appropriate orders where applicant remains in receipt of weekly compensation in respect of the physical injury; whether there is a discretion to reduce weekly payments to avoid payment of dual benefits; Held- applicant sustained a primary psychological injury; applicant had no current work capacity in respect of the primary psychological injury; incapacity is the same incapacity as that which has resulted from the physical injury; discretion in section 46 of the Workers Compensation Act 1987 exercised to reduce entitlement to weekly compensation pursuant to sections 36 and 37 by the amount already paid pursuant to section 37 in respect of the physical injury.
DETERMINATIONS MADE:	1. The applicant sustained a primary psychological injury as a result of events in the workplace following her return to work after the injury on 15 November 2019. 2. The applicant has had no current work capacity as a result of the primary psychological injury in the period from 14 March 2021 to 16 March 2022.
ORDERS MADE	1. Subject to Order 3 below, the respondent to pay the applicant weekly compensation pursuant to s 36(1) of the Workers Compensation Act 1987 on the basis of a pre-injury average weekly earnings figure of $2,267.50, periodically indexed, for 13 weeks from 14 March 2021. 2. Subject to Order 3 below, after 13 weeks, the respondent to pay the applicant weekly compensation pursuant to s 37(1) of the Workers Compensation Act 1987 on the basis of a pre-injury average weekly earnings figure of $2,267.50, periodically indexed, until 16 March 2022. 3. Pursuant to s 46 of the Workers Compensation Act 1987, the weekly compensation payable by the respondent to the applicant pursuant to ss 36(1) and 37(1) above is reduced by the amount already paid by the respondent pursuant to s 37 in respect of the injury on 15 November 2019.

STATEMENT OF REASONS

BACKGROUND

Ms Leah Purkiss (the applicant) was employed by the Secretary, Department of Education (the respondent) as a Head Teacher.
On 15 November 2019, the applicant was in the course of her employment when she was struck on the head with a soccer ball. The respondent’s insurer has accepted liability for a head injury and secondary psychological condition, resulting from that event.
On 9 March 2021, the applicant notified the respondent of a primary psychological injury due to perceived bullying and harassment by her principal following her return to work. The respondent’s insurer disputed liability to pay compensation in respect of a primary psychological injury in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 2 August 2021.
The insurer disputed that the applicant had sustained a new and separate psychological injury and denied that the applicant had any total or partial incapacity or need for medical or related treatment as a result of a primary psychological injury on 9 March 2021. The insurer confirmed that a psychological disorder secondary to the workplace injury on 15 November 2019 remained accepted.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (the Commission) on 16 December 2021. The applicant sought weekly compensation on an ongoing basis from 9 March 2021.

PROCEDURE BEFORE THE COMMISSION

At an initial teleconference in the proceedings on 3 February 2022, it was noted that the applicant remained in receipt of weekly payments of compensation pursuant to s 37(1) of the Workers Compensation Act 1987 (the 1987 Act) in respect of the injury on 15 November 2019.
The applicant’s solicitor said he had instructions to pursue the difference between the rate of weekly compensation the applicant was receiving pursuant to s 37 of the 1987 Act and the rate pursuant to s 36 of the 1987 Act for a worker with no current work capacity for the period of 13 weeks commencing on 9 March 2021.
The parties appeared for conciliation conference and arbitration hearing on 14 March 2022. The applicant was represented by Mr Bruce McManamey of counsel, instructed by
Mr Zac Gabriel. The respondent was represented by Mr Graham Barter of counsel, instructed by Mr Bruce McLean. A representative from the insurer was present.
Despite using my best endeavours to attempt to bring the parties to a settlement acceptable to them both, the parties were unable to reach an agreed resolution of the dispute.
Directions were made amending the ARD to change the date of injury to “27 January 2021 (deemed)” and to seek compensation pursuant to ss 36(1) and 37(1) of the 1987 Act from 27 January 2021 to 14 March 2022.
A timetable for the service and lodgement of written submissions addressing the issues in dispute was established. The parties were informed of my intention to determine the dispute on the materials before the Commission at the conclusion of that timetable.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I am satisfied that the parties have had sufficient opportunity to explore settlement.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant has sustained a primary psychological injury as a result of bullying and harassment in the workplace following her return to work after the physical injury on 15 November 2019;
(b)    the extent of any incapacity resulting from a primary psychological injury in the period of weekly compensation claimed; and
(c)    the appropriate orders in the circumstances of this case, noting that the applicant was in receipt of weekly compensation pursuant to s 37(1) of the 1987 Act in respect of the injury on 15 November 2019 during the relevant period.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    written submissions lodged by the applicant on 4 April 2022; and
(d)    written submissions lodged by the respondent on 14 April 2022.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statements made by her on 14 May 2021 and 9 December 2021.
In her first statement, the applicant noted that she had been struck in the head with a soccer ball whilst in the course of her employment duties on 15 November 2019. As a result of this injury, the applicant sustained a probable very mild traumatic brain injury.
Due to the injury, the applicant had been progressing through a return to work program in 2020. This process was made more strenuous by interactions of a bullying and harassment nature with the applicant’s principal.
On 5 December 2019, the applicant informed her general practitioner and rehabilitation consultant that she felt pressured to work at home despite having no capacity for work.
The applicant described a series of email interactions with her principal regarding her head teacher duties and the composition of her workload. The applicant emailed the Teachers Federation on 11 February 2020 stating that she had to work additional hours above her capacity.
In a telephone call between the applicant and Belinda Joudo (IMA, Health and Safety), the applicant reported that she was extremely distressed by the combative attitude she was encountering from her principal. The applicant felt unsafe to attend return to work meetings with the principal.
The applicant described a telephone call from the principal on the same day. The applicant described the principal as very hostile and exasperated. The principal repeatedly told the applicant that her return to work plan was going backwards.
At a return to work meeting on 17 February 2020, it was agreed that a concurrent casual teacher would be funded to be with the applicant in the classroom.
The applicant said her principal was made aware of safety issues in a classroom environment due to her lack of balance and hearing on multiple occasions via email and in face-to-face settings. Despite this, the applicant continued to be allocated classroom duties.
In March 2020, the applicant described difficulties regarding the availability of the concurrent casual teacher.
The applicant described an interaction on 29 April 2020:
“On 29 April 2020 my Principal aggressively commented that I only taught 1 lesson a day and "What was I doing with my time?" At this point in time, I was struggling with the admin workload which I informed her of. I felt that this demonstrated my Principal’s lack of understanding about my condition and her refusal to accept that there is no known timeline for recovery resulted in an emotional breakdown for the next 3 days.”
A further interaction in a return to work meeting on 26 June 2020 was described as follows:
“On 26 June 2020 in a Return-to-Work meeting my Principal stated that I am allowed, and should be, completing my administration tasks at home after hours. My Principal was hostile when I said that I had been told that I was not allowed to work outside of capacity hours. My Principal insisted that it was fine and that I should be doing this. Additionaly in this meeting, rehabilitation consultation raised concerns that I was having to hold onto objects in the classroom to maintain my balance and that my hearing loss had caused me to misinterpret a student's call for first aid. My Principal ignored these safety concerns and continued to allocate practical classes.”
The applicant said she reported feeling severe anxiety at return to work meetings, due to having to defend herself without support, in a medical case conference on 27 August 2020.
On 25 September 2020, the applicant described a conversation with her principal to discuss her Term 4 timetable. The applicant informed the principal that the proposed timetable would be a challenge for her but it would be a good test. The applicant was allocated even more classes early in Term 4.
The applicant described further interactions on 4 December 2020:
“On 4 December 2020 I had an anxiety attack at work when I found out my Principal had gone against medical advice and allocated me an extra class for the day. The anxiety was exacerbated when I saw the classes allocated to me for 2021 were those that exacerbated my injuries as the Principal refused to allow me to teach ATAR classes due to my injuries which would provide a more stable environment.”
The applicant sent an email to the Teachers Federation expressing that she felt as though she had been in a fight with her principal for 12 months. The principal had consistently refused to follow medical advice. The applicant’s anxiety in the lead up to every meeting had her continually on edge.
On 14 December 2020, the applicant sent the principal a detailed description of her injuries and symptoms and how they affected her in the classroom. Despite this, the applicant was still allocated classroom duties.
The applicant described a return to work meeting on 1 February 2021:
“On 1 February 2021 Return-to-Work meeting in response to my rehabilitation consultant asking if I could be provided with alternative duties my Principal responded that classroom teaching is the basis of what we do and until I can teach, I would not be provided with any other duties. This made me feel that she was discriminating against my condition, I have the ability to perform head teacher administration tasks however am continuously allocated challenging practical duties.”
At the same meeting, the applicant’s principal said she could see no medical evidence for the restrictions identified by the general practitioner. The applicant felt the principal was ignoring her diagnosis. The principal stated that the applicant’s doctor could not tell her what classes to give the applicant.
On 25 February 2021, the applicant reported that she had been feeling anxious about an upcoming return to work meeting. The applicant had been clenching and grinding her teeth at night and having trouble sleeping and waking. The applicant had been teary thinking about the return to work meetings.
The applicant said these interactions had caused a severe decline in her mental health. The applicant had broken down at home after every return to work meeting. The applicant said she often ended up sobbing for hours and was unable to concentrate on any task. The applicant had broken down on numerous occasions in front of her colleagues.
The applicant said she had been diagnosed with an adjustment disorder with depressed and anxious mood. The applicant described her symptoms, treatment and their effect on her life.
In her statement, dated 9 December 2021, the applicant predominantly described the effects of the physical injury on 15 November 2019. Following the accident, the applicant was absent from work until 26 December 2019. Thereafter she returned to work four days a week for three hours a day doing admin work from home. The applicant’s capacity fluctuated in the period followed. The applicant said she had been psychologically impaired since the accident.

Incident Report Form

On 9 March 2021 an Incident Report Form was completed describing a psychological disorder injury as follows,
“Leah (head teacher – home economics) has reported that she has been on WC since 11/2019 due to a brain injury…She has felt that over this time, the principal has not supported her in providing her suitable work to do while recovering from her injury. She has been asked to work longer hours than her certificate of capacity had recommended on numerous occasions. There was also an expectation that she would make up the hours working from home. She had raised some difficulties she was having in her classes with the principal and was not offered support. On the 4^th of December she notified the principal via email that she had an anxiety attack and went home, did not get a response to this. Leah has sat in meetings with her rehab provider and the principal and the rehab provider has explained the restrictions that Leah has and suggested alternative work arrangements – the principal has rejected this sighting no medical evidence is present. This has been an ongoing incident and Leah has made contact with the DEL’s office and told to lodge a new claim for a psychological injury. There is currently off work as the principal told her she had no suitable duties for her. Leah will be claiming for lost time. There will get a new certificate of capacity from her GP and still receiving medical treatment.”
Attached to the Incident Report Form was a document title “Overview of injury” prepared by the applicant. That document described a series of incidents of alleged bullying said to have caused a severe decline in the applicant’s mental health. Those incidents involving the applicant’s principal were summarised as:
“• repeatedly requested that I work outside of capacity hours,
• repeatedly demoted my duties to classroom teacher only. This resulted in targeting duties beyond my capabilities that exacerbated my head injury,
• repeatedly made inappropriate comment; throughout the RTW process,
• publicly withdrew me from a meeting with colleagues and a sales rep and told the team that I would no longer be on the project,
• failed to maintain appropriate RTW procedures
• identified the safety issues that my injuries pose in the classroom and playground and still allocated classroom duties to my RTW plan. Health and Safety and my Rehab consultant had both said during a RTW meeting at the beginning of 2020 that I was best in admin duties, but Vera would not agree.”

Respondent’s evidence

On 24 March 2021, the principal of the applicant’s school, Ms Vera Chevell prepared an email responding to a series of questions from the respondent.
Ms Chevell indicated that following the injury on 15 November 2019, the applicant had been absent from work until the beginning of the 2020 school year, other than one day on 21 November 2019.
Ms Chevell was asked to comment on the applicant’s assertion that she had been required to work outside the terms of her certificate of capacity for the head injury by working longer hours or being required to make up extra hours at home. Ms Chevell responded,
“This did not happen, she was never asked to make up extra hours at home. Nor did she do extra hours.”
Ms Chevell was asked to comment on the applicant’s claim that she was not offered appropriate duties and/or duties that were demeaning. Ms Chevell responded:
“The duties were always appropriate. Which included a reduced teaching load in accordance with the current certificate capacity. For most of the year in 2020
Ms Purkiss taught 2 x 80 minutes lesson with a 15 minute break. She taught Year 12 CAFs and Year 11/ 12 Hospitality. These classes were selected because these students were sitting for their HSC and all other classes were removed so that it would fit in with the required hours as per the current certificate of capacity.
ie Initially 3 hours 5 days a week. 27/1/20-20 - 29/4/2020. Then it moved to 4 hours days 5 a week. Then 4.5 hours 4 days a week in August. Then by December she had no capacity to work.
All HT responsibilities, whole school responsibilities and playground duties were removed as requested in the certificate of capacity. In Term 4 Ms Purkiss requested to have her HT duties back however, she was still not able to do a full day at school nor was she able to teach a full Head Teacher load of 22 teaching periods. I recommended that she focus on teaching before being able to support others as a HT.”

Treating evidence

On 18 June 2020, Dr Stan Levy, neurologist, referred the applicant to psychiatrist,
Dr Ben Teoh. The letter of referral described the head injury and stated:
“Since then she presents with symptoms of the post-concussion syndrome including depression and anxiety.”
On 17 July 2020, psychologist, Ms Mariel Gadea, prepared a report describing the incident on 15 November 2019. The applicant described a range of symptoms including physical symptoms as well as,
“Feeling overwhelmed
Feeling very stress and anxious
Mood swings
Uncontrolled crying
Feelings of hopelessness
Low mood and difficulty with motivation depressed
Jittery and extremely anxious
Short tempered and extremely angry”
Ms Gadea said the applicant had been assessed using the PHQ-9 and received a score indicating a moderate depression was present. Ms Gadea recommended a referral to a specialist psychiatrist in head injury such as Dr Patricia Jungfer. Ms Gadea advised:
“Ms. Purkiss current return to work plan should be a graded return to duties and as she is presently reporting significant incapacity with classroom practical work that this be considered as a restriction to be placed on her medical certificate to not exacerbate her psychological and physical conditions. Considering the severity of the injury to
Ms. Purkiss care should be taken in identifying suitable duties which should include regular cognitive rest breaks as required. This will mean a reconsideration of her duties to include only administration work not classroom work as she will be able to self-manage her symptoms with greater success and less interruption to student teaching. The return to work plan should be structured with one day on one day off work to allow for cognitive rest and tolerance.”

On 25 February 2021, Dr Patricia Jungfer prepared a report for the applicant’s general practitioner, Dr Darshana Dave, in which two diagnoses were made:
“1. Head injury – probable very mild traumatic brain injury
2. Adjustment disorder with depressed and anxious mood”
Dr Jungfer noted that the applicant had received correspondence that she did not have a position at work as they could not offer suitable duties. The applicant had been exceptionally low and negative. The applicant had been unable to get the return to work support that she needed in the context of a mild head injury and secondary mood disorder. Dr Jungfer said,
“Leah is now terrified of the principal and there is a secondary problem emerging, of increased anxiety in association with the work practices of the principal.”
Dr Jungfer suggested a management plan as follows:
“1. Have suggested that the situation at her school is not able to be repaired because the immediate principal's actions are toxic and maintaining the anxiety and depressions.
2. Leah needs to be found an alternative position in a different school, so she can rehabilitate in a supportive environment, as she has the potential in the right setting to recover.
3. Her mood has improved with the medication, but the early morning wakening persists. Increase the escitalopram to 30mg per day. Continue with melatonin 2-4mg as needed.”
A SIRA certificate of capacity was issued by Dr Dave on 16 March 2021 certifying the applicant as having no current capacity for any employment from 16 March 2021 to 20 April 2021. The injury was described as “bullying and harassment experienced at work”. The date of injury given was 1 February 2021.
A separate certificate of capacity was issued on the same date by Dr Dave diagnosing a work-related injury on 15 November 2019 in the following terms:
“1. Head injury - probable very mild traumatic brain injury
2. Adjustment disorder with depressed and anxious mood
3. Post concussion syndrome-with associated cervical and TMJ pain and convergence insufficiency
4. Has 0.4 % percentile auditory memory index
5. Post trauma vision syndrome -deficits in oculomotor control as well as accommodative (focussing) dysfunction
6. Auditory processing disorder
7. Whiplash”
The applicant was certified as having no current work capacity in relation to that injury for the period 16 March 2021 to 20 April 2021.
Certificates of capacity in relation to the 1 February 2021 injury, certifying no current work capacity, were again issued on 19 April 2021 and 29 June 2021.
An allied health recovery request form completed by Ms Gadea, dated 3 May 2021 referred to a date of injury of 1 February 2021 diagnosed as,
“Major depressive disorder (with anxiety) due to bullying and harassment at work by the Principal.”
That document referred to the applicant’s physical injury on 15 November 2019 and the return to work process. The document referred to the same interactions with the applicant’s principal referred to in the applicant’s statement evidence and the incident report form. The document stated:
“Ms. Purkiss reported that at every case conference and every conversation with
Ms. Shevell there was no flexible accommodations made in relation to her workplace injury restrictions the conversation would always return to classroom duties and the tone of these meetings were hostile and passive aggressive. Ms. Purkiss reported feeling completely mentally exhausted, worn down emotionally by her interactions with Ms. Shevell. She reported feeling that Ms. Shevell was not compassionate towards her situation and felt she was actively pushing her to resign. Ms. Purkiss reported feeling depressed and having suicidal thoughts at this stage so she was referred to her treating psychiatrist who reviewed her medication and increase the dosage.”
The document described the brain injury and adjustment disorder with depression and anxiety as a result of the brain injury as being “pre-existing factors”.
The document noted that the applicant was unfit for work, stating:
“The failure to provide her with suitable duties inline with her medical certificate and the persistent and harassing approach taken by her Principal to return to her to the classroom irrespective of her capacity has had a significant psychological impact on her to the point she developed persistent suicidal ideation. It would be considered unsafe to return Ms. Purkiss to Bossley Park High School under the supervision of
Ms. Shevell as she has actively undermined Ms Pukiss return to work recovery process.”
A further allied health recovery request form completed by Ms Gadea on 27 May 2021 referred to a date of injury of 15 November 2019. That form referred to physical injury diagnoses as well as psychological diagnoses of adjustment disorder with anxious and depressed mood and moderate severe depression.

Dr Hong

The applicant relies on a medicolegal report prepared by consultant psychiatrist,
Dr Michael Hong, dated 22 October 2021.
Dr Hong took a history of the difficulties described by the applicant in relation to her return to work following the injury on 15 November 2019. The applicant reported a number of psychological symptoms and said she was taking duloxetine antidepressant medication and melatonin for insomnia. The applicant had been consulting psychologist Mariel Gadea since March 2020 and psychiatrist, Dr Patricia Jungfer since January 2021.
Dr Hong provided a summary as follows:
“Ms Purkiss had no prior psychological difficulties. She described having physical, neurological and cognitive symptoms after being struck by a ball, causing a mild brain injury with ongoing cognitive impairment, problem with her vision, balance and hearing.
She ceased work after the accident, not because of her psychological symptoms, and she did not need specific medical intervention for any psychological symptoms at that point. However, once she returned to work, she started experiencing severe anxiety as a result of perceived bullying, and advised that her doctor’s recommendations were not followed by her principal, and the funding for her to have a casual classroom teacher to allow her to engage in administrative work were rapidly diverted, that her principal continued to not support her and medically discriminated against her, and she has not been able to reintegrate into the workplace successfully.
As a result of the persisting problem in the return to work process and her principal’s behaviour, Ms Purkiss developed severe anxiety and some depressive symptoms, which are consistent with an adjustment disorder and this is a primary psychological injury.”
With regard to the applicant’s capacity for work, Dr Hong stated:
“Her restrictions are appropriate as she has not regained her work capacity and remains unable to work at this point.”
Asked to comment on the insurer’s s 78 notice, Dr Hong responded:
“My view is that Ms Purkiss has a primary psychological injury arising from the return to work process and the principal’s behaviour. If she has not had the brain injury and she experienced similar behaviour from the principal, she would have developed the same psychological injury and impairment.
Whilst the return to work process is about Ms Purkiss’ head injury, her principal’s behaviours are not a medical consequence of her head injury and her psychological symptoms are a new psychological injury. There is no element of a secondary psychological injury that developed from the head injury.
I noted Dr Graham George took a similar history and gave a similar opinion, although worded differently.”

Dr George

The respondent relies on a medicolegal report prepared by consultant psychiatrist,
Dr Graham George, dated 13 July 2021.
Dr George recorded that the applicant had been working as a Head Teacher over six years and her last day at work was 27 January 2021.
Under the heading “Previous Claims”, Dr George took a history of the incident involving the soccer ball on 15 November 2019. Dr George recorded that the applicant was subsequently referred to neuropsychologist, Dr Jeanette Stewart who, after exhaustive testing, gave the opinion,
“it is my opinion thot Ms Purkiss has developed secondary psychological consequences as a result of her post concussive syndrome. She has seen a psychologist for three sessions but I feel she would benefit from psychiatric opinion in addition to ongoing psychological therapy.”
Dr George took a history that from the beginning of 2020 the applicant was cleared to do some administrative work in a graded manner. When she returned to work, the applicant was put back in the classroom against the recommendations of her general practitioner.
Dr George noted,
“She said that she struggled with the nature of her work and her symptoms were made worse by a lack of support from the executive of the school, according to her reports. She also indicated that not only were the recommendation of her doctor not followed but also, she had to tolerate what she believed were "put down comments" from the Principal. She gave as one example of a comment whereby her Principal, allegedly, had said to her on one occasion, ‘you are only teaching one class a day, what are you doing with the rest of your time’. She said that this was typical of the lack of support, which she believed that she received on her return to work. She ended up in a situation where she felt she was always defending herself. As a result, she feels that she has struggled psychologically and emotionally.”
Dr George performed a mental state examination and made a diagnosis of major depression with anxiety.
Dr George was asked to estimate the onset of this diagnosis:
“I believe that, on her return to school in 2020, when she found that her second in charge had not stepped up to be the Head Teacher position in Home Economics and she was put back to class room teaching instead of having a graded introduction to administrative duties, her symptoms commenced.”
Asked whether, if the applicant had previously experienced a psychiatric disorder, the previous symptoms were similar to the current symptoms, Dr George responded:
“Ms Purkiss had a concussive disorder following her head injury in 2019. Her executive has not abided by her doctor's recommendations with respect to her return to work apparently. She said that there was funding for her to engage in administrative duties, but she believed that the funding was used for other purposes. These circumstances have led to her psychiatric disorder.”
Asked whether the applicant’s symptoms were related to the head injury in November 2019, Dr George responded,
“I believe this to be all part of the one claim, not a separate claim. The psychological injury is a secondary effect to her head injury in combination with what occurred on her return to work.
…
Undoubtedly, the psychological consequences of her head injury have been exacerbated in the circumstances.”
With regard to the applicant’s capacity for work, Dr George gave the opinion,
“At this point in time, with a lack of confidence and ongoing symptoms related to balance and headaches when she is more active, in combination with her psychiatric disorder, I believe that it could be 6 or 12 months before return to some form of employment occurs. I cannot provide a more exact timeframe or even when an alternative return to work goal could be set.”

Applicant’s submissions

The applicant disputed that the respondent was entitled to rely upon the medicolegal reports of both Dr George (psychiatrist) and Ms Jeanette Stewart (neuropsychologist). There was no evidence that the applicant had been treated by neuropsychologist and the respondent would be required to elect to rely upon one expert.
The applicant submitted that her statement evidence of 9 December 2021 had to be understood in context. There was no evidence that the blow to the head caused any psychological symptoms although they created some physical problems which restricted the applicant’s ability to work. The applicant’s experience of those restrictions together with other matters caused the applicant’s psychological symptoms.
The applicant referred to the statement of 14 May 2021 in which the applicant described being pressured to return to work following the first injury. The applicant described distressing emails from the principal, changes to her workload and being required to work in excess of her certified hours and other matters. These incidents were set out in the Incident Report Form.
The matters set out in the applicant’s evidence were largely not disputed.
The applicant noted that the respondent relied upon an email from Ms Chevell responding to a list of questions. That email did not respond to the applicant’s statement. No basis was provided for the assertion that the applicant was not asked to make up extra hours at home and did not perform those extra hours. The email did not address what duties the applicant was asked to perform having regard to both her teaching load and administration load.
The applicant submitted that the respondent had not explained the lack of competing evidence. In any event, it was sufficient that the applicant perceived she was being given too much work or pressured to return to work.
The applicant noted that, on 16 March 2021, Dr Dave certified her as having no current work capacity as a result of bullying and harassment experienced at work. That certification was repeated on 19 April 2021. That was a separate incapacity from the incapacity resulting from the physical injury.
Ms Gadea diagnosed major depressive disorder with anxiety due to bullying and harassment at work.
Dr Jungfer diagnosed two separate injuries, being a head injury and separately an adjustment disorder with depressed and anxious mood.
The allied health recovery request of 3 May 2021 included a diagnosis of major depressive disorder with anxiety due to bullying and harassment at work by the principal. The interactions which had caused that condition were set out. The applicant had been able to return to work after the head injury and a new injury occurred as a result of the interactions with the principal. The applicant was considered unfit for work.
The applicant submitted that it was clear that incapacity resulting from the physical injury was not at that time, preventing a return to work in some form.
Dr Hong saw the applicant on 22 October 2021 and reported that the applicant developed severe anxiety and depressive symptoms as a result of persisting problems in the return to work process and her principal’s behaviour. Dr Hong correctly identified the adjustment disorder as a primary psychological injury. Dr Hong considered the work restrictions appropriate. The applicant submitted that Dr Hong had given an opinion that there was no current work capacity due to the psychological injury without expressing any view about incapacity resulting from the physical injuries.
The applicant submitted that Dr George’s assessment was similar. Dr George considered the psychological effects of the applicant head injury had been exacerbated by the circumstances of what happened on the applicant’s return to work. The exacerbation of the psychological condition was an injury itself, to which employment was the main contributing factor. Dr George’s opinion was essentially the same as that of Dr Hong.
The applicant submitted that Ms Stewart’s report was not of assistance as she did not take a history of the events upon return to work, address whether a separate psychological condition had developed and or consider what incapacity resulted from that injury.
The applicant submitted that consideration of the evidence led to the conclusion that there were two injuries, being the physical injury on 15 November 2019 and a psychological injury deemed to have occurred on 27 January 2021, being the day the applicant ceased work.
The applicant submitted that her entitlement to weekly compensation was to be determined by applying ss 36 and 37 of the 1987 Act.
The applicant submitted that it was “settled law” that if there are two separate incapacities the applicant was entitled to two awards of weekly compensation. The applicant referred to the authority in Cordina Chicken Farms Pty Ltd v Thoa Hong Le[1] (Cordina).
[1] [2008] NSWWCCPD 125.
The applicant submitted that the principle that the combined compensation under the two awards, plus the worker’s residual earning capacity, must not exceed the amount the worker would have earned had he or she remained uninjured described in Alcan Australia Ltd v Jordan[2] (Jordan) had to be viewed in the context of former s 40 of the 1987 Act, which provided a discretion to reduce payment in order to prevent what was perceived as overcompensation.
[2] (1995) 11 NSWCCR 475.
The applicant submitted that it was no longer the case that there was provision for a discretionary reduction in the first award. A feature of both ss 36 and 37 was that there was no discretion. Once the relevant facts had been determined, those sections provided formulas for the calculation of compensation payable. There was no power to increase or decrease the amount payable as determined by the formula.
Accordingly, the applicant submitted that there should be no deduction for a later occurring condition affecting the applicant’s ability to work. The legislative amendments showed a clear intent that an award of compensation was no longer limited by the principles underpinning the former s 40.
All of the authorities that considered the limits on the amounts that could be paid where there were two awards relied on s 40 to allow for a reduction in compensation. No such mechanism was available in this case.
The applicant submitted that the legislation as amended now allowed for circumstances where an injured worker could receive weekly compensation in excess of his or her pre-injury earnings. The applicant submitted that this was consistent with a worker with highest needs receiving a minimum benefit pursuant to s 38A of the 1987 Act even where that amount meant the worker received more than his or her pre-injury earnings, consistently with Hee v State Transit Authority of NSW[3] (Hee).
[3] [2019] NSWCA 175.
The applicant submitted that she had incapacity due to the physical injury and a separate incapacity due to the separate psychological injury. No part of the incapacity identified by
Dr Hong and Ms Galdea related to the physical injury.
The applicant submitted that in any event, there had been no award for weekly compensation in respect of the physical injury. Rather, the respondent had been making payments of compensation. The only matter before the Commission was the entitlement to weekly compensation as a result of the psychological injury deemed to have occurred on 27 January 2021.
The applicant did not in these proceedings, rely upon the physical injury except as necessary to establish the psychological injury, which was relied upon. The applicant had not been paid weekly compensation in respect of the primary psychological injury.
The applicant submitted that pre-injury average weekly earnings (PIAWE) figure was agreed at $2,267.50 as at 27 January 2021. That figure was subject to indexation. The applicant was entitled to 95% of PIAWE for the first 13 weeks, and 80% thereafter.

Respondent’s submissions

The respondent submitted that the workers compensation legislation was designed to compensate workers for loss as a result of incapacity, not to put an injured worker in a better position post injury than they would have been but for injury.
The respondent had accepted liability for incapacity resulting from physical injuries and a secondary psychological condition caused by the incident on 15 November 2019. Payments of weekly compensation resulting from that incident continued to be made in accordance with the 1987 Act.
For the applicant to succeed, the Commission would need to be satisfied that the incapacity from which the applicant currently suffers is different from, albeit concurrent with, the applicant’s accepted incapacity and that both incapacities result from separate injuries.

The respondent submitted that the applicant was suffering from one incapacity resulting from injury sustained on 15 November 2019.
The respondent referred to the applicant’s statement that she had been psychologically impaired since the accident in November 2019 and all symptoms arose from that day. Continuity of psychological impairment since 15 November 2019 was recorded in the incident report completed by the applicant on 9 March 2021.
The interactions that occurred between the applicant and her principal were to be understood in the context that the applicant was never able to carry out unrestricted teaching duties, because of the effects of her 2019 injury. The applicant’s perception that she was being bullied and harassed by a person trying to accommodate her disability was consistent with the persistence of psychological symptoms secondary to the physical injury.
The return to work history was consistent with the persistence of multiple physical and psychological symptoms resulting from the incident on 15 November 2019.
The respondent referred to the certificate of capacity issued by Dr Dave on 16 March 2021 attributing an adjustment disorder with depressed and anxious mood to the injury occurring on 15 November 2019. The respondent submitted that there was nothing to suggest that the diagnosis resulting from bullying and harassment at work in a separate certificate bearing the same date, altered the nature of the incapacity resulting from the incident on 15 November 2019.
The respondent submitted that it was well known that one incapacity may result from more than one cause, referring to Cluff v Dorahy Bros (Wholesale) Pty Ltd[4]. The respondent submitted that the applicant’s current incapacity was no different in its nature and extent than it was when the applicant attempted to resume work following the November 2019 incident. Irrespective of its cause, the applicant’s current incapacity was indivisible.
[4] [1979] 2 NSWLR 435 at 439.
In this case, the incapacity at issue was the worker’s incapacity from 27 January 2021 onwards. That incapacity may result from two or more injuries but the entitlement to compensation is to be calculated by reference to the worker’s earnings at the time she suffered the injury from which the incapacity results.
The respondent submitted that the applicant had been paid in accordance with s 36 and was now being paid in accordance with s 37(1) of the 1987 Act.
The respondent submitted that the Court of Appeal decision in Hee was not relevant and of no assistance as it related to a prescribed assessment applicable in a case where a worker with highest needs would otherwise be entitled to an award less than the prescribed amount.
As the applicant was already receiving her entitlements pursuant to the 1987 Act, the Commission lacked power to provide declaratory relief in accordance with the authority in Widdup v Hamilton[5].

FINDINGS AND REASONS

[5] [2006] NSWWCCPD 258.

Comment on the documents

As a preliminary matter, I have noted the applicant’s submission in respect of cl 44 of the Workers Compensation Regulation 2016, as to the respondent’s ability to rely on the medicolegal reports prepared by both Ms Stewart and Dr George.
It is noted that the report of Ms Stewart is also attached to the ARD and so appears to be relied on by the applicant.
In any event, the respondent has not made reference to the report of Ms Stewart in its submissions. To the extent that an election was required, I infer that the respondent has elected to rely on the report of Dr George. I have not relied on Ms Stewart’s opinions in making my determination in these proceedings.

Whether the applicant has sustained a primary psychological injury?

Section 9 of the 1987 Act provides that a worker who has received an ‘injury’ shall receive compensation from the worker’s employer in accordance with the Act. The term ‘injury’ is relevantly defined in s 4 as it applies to this case as:
“4 Definition of ‘injury’
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
“Psychological injury” is further defined in s 11A(3) of the 1987 Act:
“(3) A psychological injury is an injury (as defined in s 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.”
There is no medical dispute on the evidence in these proceedings that the applicant is suffering from a diagnosable psychological disorder.
The respondent has accepted liability for a secondary psychological condition, resulting from the physical injury sustained on 15 November 2019. Contrary to the applicant’s submissions, I accept that position is consistent with the treating medical evidence before me.
It appears that symptoms of depression and anxiety were associated with the applicant’s physical injury by neurologist, Dr Stan Levy and psychologist, Ms Gadea, from at least mid-2020. Ms Gadea recommended a referral to Dr Jungfer, who diagnosed an adjustment disorder with depressed and anxious mood as well as a head injury. That dual diagnosis has been picked up in the certificate of capacity issued in relation to the injury on 15 November 2019 and allied health recovery request.
It is significant, however, that Dr Jungfer, in her report of 25 February 2021 recognised a separate issue of anxiety relating to the work practices of the applicant’s principal. Dr Jungfer commented that the applicant was now “terrified” of the principal and recommendations were made regarding the need for the applicant to find alternative employment in a different school as the principal’s actions were “toxic” and “maintaining the anxiety and depression”.
Consistently with Dr Jungfer’s observations, a SIRA certificate of capacity was issued by the applicant’s general practitioner, Dr Dave on 16 March 2021, giving a new date of injury and describing a new injury due to “bullying and harassment experienced at work”.
That Dr Dave considered this new injury to be separate to the injury on 15 November 2019 is confirmed by the fact that a separate SIRA certificate of capacity was issued in relation to that injury on the same date. Notably, that certificate also included the diagnosis of adjustment disorder with depressed and anxious mood that had previously been associated with the 15 November 2019 injury.
Consistently with Dr Dave’s approach, a psychological injury due to bullying and harassment at work was the subject of an allied health recovery request form completed by Ms Gadea on 3 May 2021. A separate allied health recovery request form was completed in relation to the 15 November 2019 injury by Ms Gadea on 27 May 2021.
There is ample contemporaneous evidence of the difficulties perceived by the applicant with the return to work process that commenced in early 2020. Attached to the ARD is an email sent by the applicant to the Teachers Federation in February 2020 documenting her concerns about the return to work plan. Ms Gadea recorded in July 2020 that the applicant was reporting significant incapacity with classroom practical work and consideration should be given to including this as a restriction on the applicant’s medical certificate so as to avoid exacerbating her psychological and physical conditions.
The applicant has provided detailed and consistent accounts of the difficulties she perceived in her return to work meetings and other encounters with the principal over the course of 2020 in her statement evidence, the incident notification form, and in the histories provided to her treating practitioners, Dr Hong and Dr George.
The applicant’s principal has disputed that the applicant was asked or in fact performed extra hours at home or was required to perform unsuitable duties in email correspondence dated 24 March 2021. There is, however, no dispute that there were a series of return to work meetings and other interactions between the applicant and principal in which different perceptions of the applicant’s workload and allocated duties were expressed by both.
Deputy President Roche in Attorney General's Department v K[6] (K) considered the relevance of a worker’s perception of workplace events in determining the causation of psychological injury at [52]:
“The following conclusions can be drawn from the above authorities:
(a) employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chemler at [40]);
(b) a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);
(c) if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d) so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);
(e) there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and
(f) it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”
[6] [2010] NSWWCCPD 76.
Further at [54]:
“The critical question is whether the event or events complained of occurred in the workplace. If they did occur in the workplace and the worker perceived them as creating an “offensive or hostile working environment”, and a psychological injury has resulted, it is open to find that causation is established. A worker’s reaction to the events will always be subjective and will depend upon his or her personality and circumstances.”
Notwithstanding the views of Ms Chevell, both Dr Hong and Dr George have in their medicolegal reports expressed the opinion that the applicant’s perceptions of difficulties with the return to work process were causally related to the psychological condition diagnosed by them.
The distinction between a primary psychological injury and secondary psychological condition is explained in s 65A of the 1987 Act, which provides that no compensation is payable under Division 4 in respect of permanent impairment that results from a secondary psychological injury. A ‘secondary psychological injury’ is defined in s 65A to mean “a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury”. A ‘primary psychological injury’ is defined to mean “a psychological injury that is not a secondary psychological injury”.
Dr Hong has given a clear opinion that the applicant sustained a new primary psychological injury arising from the return to work process and the principal’s behaviour. Dr Hong considered this injury to be separate to the brain injury which occurred on 15 November 2019, commenting that the principal’s behaviours were not a medical consequence of the head injury.
Dr George’s opinion is largely consistent with Dr Hong’s conclusion. Dr George estimated that the condition diagnosed by him commenced on the applicant’s return to school in 2020 and the circumstances surrounding the applicant’s return to work had led to the psychiatric disorder.
Dr George did express the view that this was all part of one claim rather than a separate claim. With respect, however, it is not apparent that Dr George had correctly understood the legal tests involved. Dr George expressed the “undoubted” view that the psychological consequences of the applicant’s head injury were “exacerbated” by the circumstances of her return to work. This is consistent with an injury in the nature of an exacerbation of a disease for the purposes of s 4(b)(ii) of the 1987 Act.
The correct legal test is usefully illustrated in Cannon v The Healthy Snack People Pty Ltd[7]. In that case, the worker suffered a physical injury in the course of her employment. On her return to work on suitable duties, she suffered a psychological injury as a result of harassment over her “suitable duties”. Deputy President Roche held that her psychological condition was a primary psychological injury because the harassment was an event that was “extraneous or extrinsic” to the original physical injury and not part of the series of events that followed from the physical injury. It was not part of the causal chain. Therefore, the psychological injury had not arisen “as a consequence of, or secondary to, a physical injury” (s 65A(5)) but had resulted from the harassment, which was a separate cause,
“To say that a psychological injury that results from harassment while on suitable duties would not have happened “but for” the physical injury is to ignore the fact that the harassment (if it occurred) is an event that is “extraneous or extrinsic” (per McHugh J in Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 at 428) to the original back injury. It is not part of the “series of events” that have followed from the back injury and it is not part of the causal chain.
To use the analogy referred to by Burke CCJ in Lawton v Star City Pty Ltd (No 36677 of 2001, unreported, 16 October 2002), the respondent’s argument is similar to saying, ‘if the worker had not gone to work on the day of his accident he would not have suffered an injury’. That is undoubtedly true, but the injury is not a consequence of the mere fact of going to work, it is a consequence of the injurious event or events that occur in the course of or arising out of the employment.
Therefore, if a worker on suitable duties, because of a work-related physical injury, develops a psychological injury as a result of harassment while on those duties, the resulting psychological injury has not arisen as a consequence of, or secondary to, the physical injury, but has resulted from the harassment. Section 65A is intended to prevent the double recovery of lump sum compensation in circumstances where a worker has suffered a physical injury and, as a consequence of that physical injury (the pain and/or the discomfort and/or loss or impairments caused by that injury), has developed a secondary psychological condition. It does not prevent the recovery of lump sum compensation in circumstances where, as a result of a physical injury, a worker is placed on suitable duties and, as a result of an “extraneous or extrinsic” event, such as harassment or bullying while on those duties, develops a psychological injury.”
[7] [2009] NSWWCCPD 32.
Applying these principles, and on all the evidence before me, I am satisfied that the applicant sustained a primary psychological injury pursuant to s 4(b)(ii) of the 1987 Act as a result of the return to work process which is distinct and separate to the physical injury on 15 November 2019 and any psychological symptoms which were secondary to that physical injury.

Incapacity resulting from the primary psychological condition

Section 33 of the 1987 Act provides:
“33 Weekly compensation during total or partial incapacity for work
If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.”
The entitlement to payments of weekly compensation where there is total or partial incapacity for work resulting from an injury requires consideration of whether the applicant had “current work capacity” or “no current work capacity”. Those terms are defined in cl 9 of schedule 3 to the 1987 Act as follows:
“9 Meaning of ‘current work capacity’ and ‘no current work capacity’
(1) An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2) An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
The evidence before me as to the extent of any incapacity for work resulting the primary psychological injury is somewhat limited. The first evidence of incapacity resulting from that injury is the certificate of capacity issued by Dr Dave on 16 March 2021. That certificate certified the applicant as having no current capacity for any employment from 16 March 2021 to 20 April 2021. That certificate relied on a date of injury on 1 February 2021.
Further certificates in relation to the primary psychological injury, certifying the applicant as having no current work capacity were again issued on 19 April 2021 and 29 June 2021.
As at 13 July 2021, Dr George expressed the opinion that the applicant lacked capacity for any form of employment due to her ongoing symptoms related to balance and headaches in combination with her psychiatric disorder. Dr George estimated that it could be 6 to 12 months before a return to some form of employment occurred.
In October 2021, Dr Hong gave the opinion that the applicant’s current restrictions were appropriate and the applicant had not get regained work capacity. Dr Hong said the applicant remained unable to work at that time.
No more recent medical evidence pertaining to the applicant’s incapacity has been provided.
The most recent evidence before me is that set out in the written statement made by the applicant on 9 December 2021. That statement refers to the applicant’s physical and psychological symptoms, and states that she has continued to experience symptoms from November 2019 to date.
On the basis of this evidence, I am satisfied that in the period on and from 16 March 2021, the applicant had no current capacity for work as a result of her primary psychological injury.
Although the amended ARD seeks weekly compensation from 27 January 2021 to 14 March 2022, there is no medical evidence before me as to the extent of the applicant’s incapacity, if any, resulting from the primary psychological injury prior to 16 March 2021.
Dr Jungfer referred to the primary psychological injury in her report of 25 February 2021 but described that as an “emerging problem”. Dr Jungfer’s management plan as at that date, suggested that the applicant might lack capacity to engage in her pre-injury duties but suggested there was some capacity to work in an alternative position in a different school. Importantly, however, Dr Jungfer’s report did not at that stage distinguish between the effects of the injury on 15 November 2019 and the emerging psychological problem she described.
Whilst I would be prepared to accept that the applicant’s primary psychological injury may have predated 16 March 2021, as alleged, I am not satisfied on the evidence before me that the applicant was totally or partially incapacitated for work as a result of that injury prior to the first certificate of capacity from Dr Dave on 16 March 2021.

As indicated above, the most recent medical evidence of incapacity before me is the report of Dr Hong, dated 22 October 2021, which is now some seven months old. Dr Hong considered that the applicant’s current certification of no current work capacity was appropriate as at that date. Dr Hong’s opinion is consistent with the report of Dr George, dated 13 July 2021, who considered that it could be 6 to 12 months before a return to some form of employment occurred.
No evidence has been provided which would suggest any recovery or increase in the applicant’s capacity for work in the period to 14 March 2022.
In the period from 16 March 2021 to 14 March 2022, I find that the applicant had no current work capacity as a result of the primary psychological injury.

Quantification of the entitlement to weekly compensation

Section 36 of the 1987 Act relevantly provides:
“36 Weekly payments during first entitlement period (first 13 weeks)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of 95% of the worker’s pre-injury average weekly earnings.”
Section 37 of the 1987 Act relevantly provides:
“37 Weekly payments during second entitlement period (weeks 14–130)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.”
There is no dispute between the parties that the relevant PIAWE figure for the primary psychological injury is $2,267.50.
Having regard to my findings above, I am satisfied that the applicant is entitled to weekly compensation at the rate of 95% of her PIAWE, as periodically indexed, for a period of 13 weeks commencing on 16 March 2021.
In the period after 13 weeks to 14 March 2022, the applicant is entitled to weekly compensation at the rate of 80% of her PIAWE, as periodically indexed.
The applicant submits that the Commission should make an award of compensation in accordance with ss 36(1) and 37(1) notwithstanding that she has already been in receipt of weekly compensation pursuant to s 37(1) throughout the relevant period.
The list of payments attached to the Reply indicates that in the period of weekly compensation claimed in these proceedings, the applicant has been paid compensation at a rate of between $1,816 and $1,856 in accordance with s 37(1) of the 1987 Act on the basis that the applicant had no current work capacity in respect of the 15 November 2019 injury.
The applicant submits that there is no legislative basis for reduction in the award of the kind that existed under former s 40 of the 1987 Act. The applicant submitted that the legislation now allowed for circumstances where an injured worker could receive weekly compensation in excess of her pre-injury weekly earnings. This is said to be consistent with the approach to s 38A in Hee.
The respondent submits that the approach taken in Hee is confined to the specific circumstances of a worker with highest needs and I accept that submission.
Elsewhere in the 1987 Act, there are a number of provisions that are consistent with the common law principle against permitting double recovery[8]. This principle can be seen to underpin the provisions in, for example, s 50 of the 1987 Act in relation to the payment of wages for sick leave and s 151Z in relation to the recovery of damages in respect of the injury. Division 8 of the 1987 Act contemplates the reduction of benefits where additional or alternative compensation is payable, although the provisions in that Division do not appear to be operational due to the absence of regulations prescribing the additional or alternative compensation to which the Division applies.
[8] See for example Parry v Cleaver [1969] UKHL 2; [1970] AC 1 at 13 per Lord Reid.
Importantly, however, s 46 of the 1987 Act provides:
“46   Reduction of weekly payments to prevent dual benefits
(1)    The Commission may, on the determination of an application for any weekly payment of compensation or on a review under this Act of any weekly payment of compensation, order that the weekly payment be reduced to prevent dual benefits of the same kind being payable by the employer during and in respect of the incapacity for work.
(2)    Any such order shall have effect according to its tenor.
(3)    This section does not affect the operation of section 49 or 50.”
The effect of s 46 was considered in Roads & Traffic Authority of New South Wales v Smith & Anor[9] :
“The power conferred by section 46 is discretionary, and operates to prevent payment of ‘dual benefits of the same kind’. The submission made by the worker is that the settlement in the Industrial Relations Commission of NSW was ‘of all claims the worker brought against his former employer’, and one cannot distinguish what part of the settlement is ‘actual wages’. The evidence does not include the pleadings in the Industrial Commission of NSW, nor the deed (or whatever other document) effected the settlement. Accordingly, the only information available for the purpose of characterising the settlement payment is the worker’s evidence at T11 to 14.
The forerunner of section 46, section 13 of the Workers Compensation Act 1926 was dealt with by the High Court in Steggles Pty Limited v Vandenberg [1987] HCA 35; [1987] 163 CLR 321 (‘Steggles’). Section 13 provided:
‘In fixing the amount of the weekly payment, regard shall be had to any payment, allowance or benefit (other than any payment, allowance or benefit from a superannuation or similar fund to which the worker has contributed) which the worker may receive from the employer during the period of his incapacity.’ (emphasis added)
The High Court in a joint judgment rejected an argument payment to a worker, pursuant to an industrial award, for a rostered leisure day, should result in compensation not being payable for the same day, pursuant to section 13:
“The payment for the rostered leisure day was in no sense a payment in respect of the respondent's incapacity. Nor was it a payment of wages for work which was done or which would, but for the incapacity, have been done on that day. It was in truth a payment of wages for work done within the ordinary working week, being work done in 0.4 of an hour on nineteen previous days in accordance with the provisions of cl 5 of the Award. The case is therefore not one in which a worker receives both a payment of compensation and a payment of wages for work done on the same day.” (at 327)
Whilst Steggles dealt with a differently worded section, there are similarities. In section 46, as in the previous section 13, application of the section requires that the amount payable by the employer be related to the worker’s incapacity. Indeed the required connection between the payment and the incapacity is greater under section 46 than its forerunner. Section 13 required that the payment be ‘during the period of his incapacity’, whereas section 46 requires that it be ‘during and in respect of the incapacity for work’.”
[9] [2007] NSWWCCPD 134.
In Workers’ Compensation Dust Diseases Board of NSW v Cook[10], Basten JA commented on the operation of s 46 in the context of a submission that a worker was not entitled to benefits under the Workers' Compensation (Dust Diseases) Act 1942 for his dust disease in light of his previous recovery of common law damages:
“Further, s 46 refers to ‘dual benefits of the same kind’, not to the payment of compensation and damages. The benefits are to be payable ‘by the employer’, which does not engage the present case.
…
Of critical importance in this context is that the primary purpose of the Workers Compensation Act is to confer on a worker who has received an injury (being a personal injury arising out of or in the course of his or her employment) a right to receive compensation from the worker’s employer. The Dust Diseases Act does not provide for payments of compensation by an employer, but by the Board, albeit from a fund created under s 6 of the Dust Diseases Act which will include payments by workers’ compensation insurers.”
[10] [2015] NSWCA 270.
In the same case, MacFarlan JA commented:
“Moreover, the reference to ‘dual benefits’ is, in its context, a reference to duplicated Workers Compensation Act benefits and does not refer to common law damages.”
The cases set out above demonstrate that in order for the discretion in s 46 to apply, it is necessary that:
(a)    the dual benefits be of the same kind;
(b)    the benefits be payable by the employer;
(c)    the benefits be payable during the incapacity for work; and
(d)    the benefits be payable in respect of the incapacity for work.
I am comfortably satisfied that the conditions described in paragraphs (a), (b) and (c) above are satisfied in the present case. In the period from 14 March 2021 to 16 March 2022, the applicant has been paid by the employer weekly compensation under the 1987 Act.
The final precondition to the exercise of the discretion requires more careful attention. This requires that consideration be given to the nature of the applicant’s incapacity for work.
The applicant submits that her incapacity for work as a result of the 15 November 2019 injury is separate and distinct from her incapacity for work due to the primary psychological injury relied on in these proceedings. The applicant relies on the authority in Cordina in support of her submission.
Whilst the decision in Cordina confirms that it is possible for an applicant to have two separate and distinct incapacities, it also confirms that it is possible for an applicant have one incapacity resulting from two injuries[11]. The court in Cordina rejected the worker’s submission that she had two separate and distinct incapacities, despite accepting that she sustained two separate injuries in the course of her employment with Cordina.
[11] See National & General Insurance Co Ltd v South British Insurance Co Ltd [1982] HCA 62; (1982) 149 CLR 327.
Deputy President Roche referred to the decision in Jordan as providing a good example of a case where it was appropriate to find that separate incapacities had resulted from multiple injuries:
“The facts in Jordan are a good illustration of the kind of situation where it was held to be appropriate to find that separate incapacities had resulted from multiple injuries. In that case, the worker developed “pot room asthma” in 1982. In August 1986 he injured his back, but continued working. In March 1989 he injured his left knee and back, and underwent knee surgery in September of that year. He lost no time from work until his employment was terminated in 1990. Because of the effect of the transitional provisions in the 1987 Act, his first back injury was deemed to have happened in March 1989 and these constituted a single injury for the purposes of the 1987 Act (at 483C).”
In Ms Le’s case, no attempt was made to identify the restrictions that resulted from one injury compared to the other. Both injuries affected the worker's ability to carry out manual work albeit for slightly different reasons. Deputy President Roche stated:
“In Ms Le’s statement of 23 August 2007, no attempt is made to identify the restrictions she has as a result of one injury compared to the other. The crush injury has clearly affected Ms Le’s ability to carry out manual work because she “always guards her left hand” and she uses her right hand for everything. Similarly, the carpal tunnel syndrome has also affected her ability to engage in manual work because of pain and an inability to firmly hold objects. Having regard to the authorities of Ince and Jordan, however, I am unable to determine that the carpal tunnel syndrome has resulted in an incapacity that is separate and distinct from the incapacity resulting from the crush injury. On the limited and unsatisfactory evidence tendered, I am comfortably satisfied that, in the labour market reasonably accessible to her, Ms Le’s injuries have resulted in one incapacity, namely, an incapacity to engage in full time unskilled manual work requiring the lifting of objects heavier than two kilograms.”
In the present case, the medical evidence before me suggests that both the 15 November 2019 injury and the primary psychological injury which is the subject of these proceedings have resulted in a total incapacity to engage in the applicant’s pre-injury duties as a Head Teacher or any other suitable employment. Although I accept that the applicant has sustained two injuries, the incapacity resulting from each injury is the same.
I am satisfied, therefore, that benefits of the same kind have been paid by the respondent during and “in respect of the incapacity” for work, which is the subject of these proceedings.
Pursuant to s 46 of the 1987 Act, the Commission has a discretion to order that the weekly payments to which the applicant is entitled pursuant to ss 36(1) and 37(1) of the 1987 Act in respect of the primary psychological injury be reduced to prevent the payment of dual benefits. I am satisfied that it is appropriate to exercise that discretion in the circumstances of this case.
My decision to exercise the discretion in s 46 is consistent with the approach taken in Cordina by reference to common law principles. Were it necessary to do so, I would adopt the same approach.
There will be an order that the weekly payments to which the applicant is entitled in respect of the primary psychological injury are reduced by the amount of weekly compensation already paid by the respondent in respect of the 15 November 2019 injury.

[2022] NSWPIC 269

3 June 2022